Can State Anti-Terrorism Laws Authorize States to Act as Terrorists?: A Quick Look at the U.S., Ethiopia & Sri Lanka
Counterterrorism legislation has swept the globe in a variety of forms since September 2001. In recent years, there has been growing concern that some of these laws are being used to by states to commit grave human rights violations under the justification banner of counterterrorism.
A precise definition of the term “terrorism” has long eluded academics and practitioners alike, even before the 2001 attacks on the Pentagon and the World Trade Center thrust the legal issues surrounding terrorism into the geo-political limelight. In reaction to the 2001 attacks, the UN Security Council issued Resolution 1373, which requires Member States to criminalize the funding of terrorist activities and forbids Member States to harbor, encourage, or otherwise assist those accused of terrorist activities. But what exactly constitutes a terrorist activity? While Member State definitions of terrorism are highly varied, at least two factors remain consistent. First, a terrorist act must be intended to provoke fear or to intimidate in order to achieve a political or ideological purpose. Second, and more importantly for our purposes here, terrorists must be individual actors; there is no state definition of a terrorist broad enough to include the state itself. There is at least one obvious reason for this: States cannot be prosecuted under international criminal law (this is not a codified principle, but it appears to be a political reality). Moreover, although terrorism is not a discrete crime under the Rome Statute, the International Criminal Court (ICC) is only authorized to hear cases brought against individual actors. Nevertheless, for our purposes here, I will set aside the issue of state prosecution for another day. The goal of this article, rather, is to determine to what extent, if any, the language of a state’s counterterrorism legislation can be used to authorize the state to engage in acts that, if perpetrated by a non-state actor, would be considered terrorist acts.
In exploring this possibility, I will use three case studies. First, I will explore the justification for and effects of the ongoing use of drones under U.S. counterterrorism legislation. Second, I will explore the justifications for the arrests and torture of so-called Islamic extremists in Ethiopia, authorized by Ethiopia’s counterterrorism laws. Finally, I will explore the justification for the mass detention, torture, and execution of unknown numbers of Sri Lankan nationals over the past four decades, authorized by Sri Lanka’s counterterrorism and “state of emergency” laws. I have chosen these examples because they are relatively recent and because they are ongoing. This is a very brief survey; many other similar examples have occurred and continue to occur in other parts of the world.
In the interests of brevity and uniformity, I will refer primarily to the UN’s working definition of terrorism set out in Security Council Resolution 1566. That Resolution states that acts of terror are:
[C]riminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.
I. The United States’ Killing of Civilians Through its Use of Drones
A domestic counterterrorism law passed less than one week after 9/11 authorizes the United States’ use of drones. It reads:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
This law—known as the 2001 Authorization for the Use of Military Force (AUMF)—has served as the justification for hundreds of drone strikes over the past decade plus. Sources generally trace the birth of the drone program to 2000, when the CIA began flying unstaffed drones over Afghanistan to support military surveillance operations. The CIA is an agency that reports to and receives direction from the executive branch, so the AUMF in conjunction with the executive war power affords the President broad discretion to employ drones in a variety of terror-related situations. It is unclear, in fact, where this power ends, but U.S. legal scholars seem to agree on two things: (1) the power authorizes the killing or detention of individuals associated with al-Qaeda, even if they are not actually members of the organization; and (2) the power lasts at least as long as al-Qaeda continues to exist and the war in Afghanistan continues to persist.
Such a broad discretionary power is troubling, but may be considered acceptable under the self-defense requirements in the international law of war (jus ad bellum). Attacks made in anticipatory self-defense must be proportional, necessary, and urgent (immediate). In other words, drones can be utilized for anticipatory self-defense purposes only when absolutely necessary to prevent the immediate and near-certain loss of innocent lives. Unfortunately, a majority of the documentation on U.S. drone strikes thus far indicates that the U.S. has not met these requirements.
One well-reported example of U.S. targeting practices was when a U.S. drone strike killed Anwar al-Aulaqi in 2011. On September 30, 2011, a U.S. drone operated by the CIA over north Yemen fired missiles at a car carrying al-Aulaqi, a member of Al-Qaeda in the Arabian Peninsula (AQAP) and radical cleric who gave English-language online sermons exhorting others to attack the United States. Al-Aulaqi was killed, along with Samir Khan, editor of the English-language jihadist magazine Inspire. Although the CIA was not aware that Khan was in the car when it fired missiles at the car, an unnamed administration official stated that Khan was considered “a belligerent whose presence near the target would not have stopped the attack.”
In spite of President Obama’s insistence that such strikes do not cause a “huge number of civilian casualties,” there is mounting evidence that the current “signature strike” protocol does a poor job of distinguishing between combatants and civilians, resulting in a disproportionate amount of civilian casualties and the infliction of grave psychological trauma on civilians in a given strike zone (“signature strike” protocol authorizes the CIA or the military to make the decision to fire based not on who the targets are but on whether they are exhibiting suspicious patterns of behavior thought to be “signatures” of terrorists). Clive Stafford Smith, director of the human rights advocacy group Reprieve, put it as follows. “…[E]ntire region[s are] being terrorized by the constant threat of death from the skies…Their way of life is collapsing: kids are too terrified to go to school, adults are afraid to attend weddings, funerals, business meetings, or anything that involves gathering in groups.”
Recall the Resolution 1566 terrorism definition quoted above. Terrorist acts are (1) “criminal acts, including against civilians,” (2) “committed with the intent to cause death or serious bodily injury” (3) “with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons,” or (4) to “intimidate a population.”
Clearly, U.S. drone strikes are made with the intent to cause death to the targets of the strikes, and there is a good argument to be made that the strikes are intended to provoke specific groups of persons to act or refrain from acting in certain ways through fear or intimidation. (As President Bush declared, the United States’ “war on terror begins with Al Qaeda…[but i]t will not end until every terrorist group…has been found, stopped and defeated.”) However, an argument that the U.S. intends to provoke fear among the general populations of Yemen, Afghanistan, or Pakistan is far shakier. Nevertheless, the terror does exist, and while the U.S. may not intend to cause civilian terror through drone strikes, it nevertheless may be reckless or negligent as to whether its actions cause terror. Under U.S. common law, reckless indifference to human life would render an individual criminally liable for first-degree murder, and negligence rises to the level of criminality if the death of innocent bystanders is a reasonably foreseeable result of a perpetrator’s actions (though criminal negligence varies by state). What if the state were held to the same standards it imposes on its citizens? Was the U.S. recklessly indifferent to Khan’s life when it authorized the attack on Al-Aulaqi? Are civilian casualties reasonably foreseeable under the “signature strike” protocol?
Drone strikes are intended to cause death. They cause death with the purpose, at least in part, of striking fear into the hearts of a particular group of persons—namely, terrorists. However, while demonstrating the political or ideological motivation of U.S. acts may be possible, it is far shakier territory. That is because, it would seem, the question of whether state law allows a state to engage in terrorist acts under Resolution 1566 depends upon who gets to decide who is a terrorist and who is a counterterrorist.
But no matter who determines the labels, a terrorist attack on the United States cannot justify the United States’ engagement in terrorist attacks abroad. Because the international law doctrine of self-defense cannot justify many of the U.S. drone strikes, and because some of the strikes would likely meet Resolution 1566’s terrorism elements were it possible to try a state for terrorism, the U.S. may have crossed the fine line that separated its counterterrorism efforts from terrorists ones. Thus, the United States’ AUMF counterterrorism legislation may have been used (and may continue to be used) to authorize the U.S. to engage in terrorist acts as defined by Resolution 1566.
II. Ethiopia’s Arrest and Detention of Islamic “Extremists”
Ten years after signing on to the (now defunct) OAU’s Convention on the Prevention and Combating of Terrorism in 1999, Ethiopia passed a new anti-terrorism law (Proclamation No. 652/2009) that went well beyond the AU’s already broad definition. Proclamation 652 specified that terrorism is any act that might endanger or increase a risk to persons, property, public services, and environmental resources while the perpetrator was attempting to coerce the government or intimidate a segment of the population. In addition to criminalizing terrorism, the law also criminalizes planning, preparation, conspiracy, attempt, rendering support, encouragement, and other acts. Moreover, the crime of terrorism is punishable by death. Human Rights Watch has condemned the law by saying that it provides “the Ethiopian government with a potent instrument to crack down on political dissent…It would permit long-term imprisonment and even the death penalty for ‘crimes’ that bear no resemblance, under any credible definition, to terrorism.”
The controlling party—the Ethiopian People’s Revolutionary Democratic Front (EPRDF)—gave several justifications for the law. The EPRDF claimed, for example, that previous OAU measures were inadequate, and that Resolution 1373 imposed an obligation on the EPRDF government to adopt Proclamation 652. While these explanations retain grains of plausibility, I submit here that they cannot justify the breadth of Ethiopia’s counterterrorism laws.
The police may arrest without court warrant any person whom he reasonably suspects to have committed or is committing a terrorist act as provided under this Proclamation.
Article 20 reads:
The court, before which an arrested person is presented in accordance with Article 19 of this Proclamation, may give an order to remand the suspect for investigation or trial…If a terrorism charge is filed in accordance with this Proclamation, the court shall order the suspect to be remanded for trial until the court hears and gives decision on the case.
To demonstrate the reach of these laws, consider Ethiopia’s well-documented detention and prosecution of so-called “extremist” Imams and Islamic leaders. The EPRDF used Proclamation 652 to justify its apparent attempt to force Ethiopian Muslims to convert to a specific sect of Islam—a Lebanese branch known as “Ahbash.” In or around July 2011, the Ethiopian government began to force Ethiopian Imams, scholars and leaders to attend “tolerance trainings.” Those targeted for training were forced to accept the EPRDF’s “revolutionary democracy” ideology. Thousands of Imams and religious figures were forced to retake the Islamic declaration of creed (known as the “Shahada”). The forced conversion occurred throughout Ethiopia and those who refused to convert faced retaliation, including government-imposed economic and social hardship.
Opposition to the government’s plan took the form of peaceful protests. Government responses to the protests included aggressive indoctrination campaigns, the expulsion of non-Ahbash Muslims from their positions, the closure of a number of Islamic schools, and a nationwide crackdown on Muslims who protested the indoctrination campaign.
The expelled Imams and leaders were soon replaced by Ahbash converts who had previously converted under pressure from the government and the Ethiopian Islamic Affairs Council (also known as the “Majlis”). The Majlis are described by government actors as the “representatives” of Ethiopian Muslims, although their leadership is comprised primarily of government-affiliated officials. Even though they have no official legal authority, in practice, their authority is wide-ranging and all Islamic schools and organizations require approval of the Majlis in order to incorporate and operate.
As Committee-led protests continued, a number of high-ranking government officials attempted to persuade the Committee to end the protests. These negotiations were widely reported, and despite the government’s early efforts to reach a solution, it ultimately resorted to a violent suppression campaign involving mass arrests and intimidation of the Committee and protesters. By April 2012, the late Prime Minister Meles Zenawi openly described the protesters as terrorists and accused them of conspiring with international Jihadist organizations to overthrow the Ethiopian regime and establish an Islamic state.
The state campaign of intimidation and arrests escalated between 19 and 21 July 2012, during which time security forces arrested approximately 1,000 protesters (the precise number of arrests is unknown). Reports of excessive use of force, torture, beatings and other mistreatment while in custody were prevalent.
Finally, in October 2012, a group of protest leaders were formally charged with terrorism offences. During their pre-trial detention, government agencies (with the cooperation of Ethiopian media outlets) released a documentary in which it was strongly implied that the complainants and their supporters were guilty of being part of a wider network of global Jihadi organizations.
Recall the elements of Resolution 1566 set out in the introduction to this article. Terrorist acts are (1) “criminal acts, including against civilians” (2) “…or taking of hostages” (3) “with the purpose to provoke a state of terror…in a group of persons or particular persons,” or to (4) “intimidate a population…to do or to abstain from doing any act.”
Over the past three years, the EPRDF has reacted violently to peaceful protests and arbitrarily arrested civilian leaders engaged in such protests. This is a clear and ongoing violation of those citizens’ due process and freedom of expression rights, and the detention of protest leaders could be described as a “taking of hostages.” Moreover, the arbitrarily arrested civilian leaders have been subjected to various forms of torture while in prison; torture which is likely motivated by an intent to provoke terror in particular persons (Imams, scholars, and other leaders) to influence those persons to engage in a specific act (convert to Ahbash Islam). The conversions are forced because the “trainings” are mandatory and failure to convert results in varying degrees of social punishment; the arrests are criminal because they clearly violate the due process and fair trial rights of the detainees; the torture is criminal because it violates well-established international norms on what constitutes criminality; and the torture is intended to provoke terror because it utilizes fear and intimidation to influence civilians to adopt the ruling party’s religion and ideology.
Accordingly, I submit that, because Ethiopia’s counterterrorism laws grant overly broad detention rights to the ruling party, because the ruling party holds sole discretion in how to apply those laws, and because those laws have been used to justify criminal acts perpetrated against civilians with the purpose of intimidating those civilians to take a certain course of action, Proclamation 652 authorizes the Ethiopian government to engage in terrorist acts as defined by SC Resolution 1566.
III. Sri Lanka’s Indefinite Detention and Torture of Former Tamil Tigers
Sri Lanka is my final example of how national terrorism laws may authorize a state to engage in activities the violate Resolution 1566. (As a side note, the UN recently decided to launch a war-crimes probe into the actions of the Sri Lankan Government and the Tamil Tigers during the final phase of the 2009 conflict.)
In the wake of a military win in a nearly three-decades-long civil war between the majority-Sinhala government and the Liberation Tigers of the Tamil Eelam (LTTE), which claimed to represent the minority Tamil population, many Tamil civilians live in what could be described as a continual state of terror. Particularly, they fear and express concern with the government’s mission to root out all possible LTTE supporters. While most of the 300,000 Tamils initially detained in internationally funded “internment” camps have been released for resettlement, it is believed that up to 3,000 Tamils are being detained incommunicado for “rehabilitation” in undisclosed facilities.
Moreover, the Sri Lankan government is notorious for torturing persons accused of crimes. The UN Committee Against Torture, in particular, expressed concern with the practice “where the victims were allegedly randomly selected by police to be arrested and detained for what appears to be an unsubstantiated charge and subsequently subjected to torture or ill-treatment to obtain a confession for those charges.” The government has been blamed for enforced disappearances, including of human rights activists and journalists; approximately 475 disappearances were reported to the UN Working Group on Enforced or Involuntary Disappearances between 2006 and 2010. These violations are committed with full impunity—soldiers and government officials go uncharged despite evidence showing their participation in a multiplicity of human rights violations and international crimes.
There is evidence that some of these gross abuses were authorized at the highest levels of command: Amnesty International Asia Program Director Sam Zarifi claimed that execution orders had been issued by the defense secretary, who is also the president’s brother. A 2009 U.S. State Department Report concluded that Sri Lankan government forces shelled civilian areas and caused deaths before the expiry of a publicly announced ceasefire. Captives and combatants who sought to surrender were allegedly slaughtered. The report also documented cases of disappearances and killings in custody. (Amnesty International issued a similar report.) By the conclusion of the military campaign commenced under the leadership of President Mahinda Rajapaksa in 2009, it is likely that over 40,000 civilians had been killed.
The Sri Lankan government’s use of torture against former Tamil Tigers was already well documented in 2002, when the Canadian Supreme Court refused to deport a former Tiger fundraiser in Suresh v. Canada. In that case, the Court found that the former Tiger “made a prima facie case showing a substantial risk of torture if deported to Sri Lanka, and that his hearing did not provide the procedural safeguards required to protect his right not to be expelled to a risk of torture or death.” In the years since, Sri Lanka has gained notoriety not just for its torture practices, but for arbitrary detentions and executions as well. Quite recently, the government’s vociferous denials of wrongdoing were undermined by video and other evidence of troops executing bound captives; a U.N. expert confirmed that a mobile phone video showing one such killing was genuine after three forensic experts viewed the footage.
Reportedly, the Sri Lankan military has taken over 7,000 of the 18,800 square kilometers of land occupied by Tamils in Sri Lanka’s Northern Province, and there is one soldier for every ten inhabitants in Jaffna, its provincial capital. The militarization is intended to assert government control and prevent the organization of Tamil opposition. Many Tamils also fear that their land is being taken as part of a government-sponsored “Sinhalisation” process, which appears to be an attempt to reduce the concentration of Tamils in the Northern and Eastern Provinces by giving land to the Sinhalese majority. The government further has linked with Tamil paramilitary groups in the Eastern Province who violently control the predominantly Tamil population there. These paramilitary groups regularly engage in “extrajudicial killings, abductions, extortion, prostitution and child trafficking.” They are permitted full impunity in exchange for loyalty to the government.
What does all of this have to do with terrorism? Sri Lanka’s counterterrorism and “state of emergency” legal regimes have been used to authorize the treatment described above. From 1971 to 2011, Sri Lanka was in an almost continual “state of emergency.” Article 155 of Sri Lanka’s Constitution authorizes its President to issue emergency regulations “amending or suspending the operation of the provisions of any law, except the provisions of the Constitution.” That Article also establishes the Public Security Order, which empowers the President to, among other things, “issue emergency regulations which may: (1) authorize detention without charge or trial; (2) authorize entry, search and seizure of property; (3) amend any law (other than the Constitution) or suspend its operation; and (4) create special courts to prosecute offenders, including under the emergency regulations themselves.”
The Prevention of Terrorism Act was introduced as a temporary law in 1979 and permanently adopted in 1981. That Act allows the suspension of certain rights of criminal procedure, including the right of individuals to be presumed innocent, as a means to prevent terrorism and other unlawful activities. Under the Act, people can be arrested without charge or trial and detained for up to 18 months while police investigate the possibility of their involvement in illegal activity. The Act also allows for indefinite detention on order of a magistrate pending trial. The effect of this magistrate detention is that many remain in pre-trial detention for years. Moreover, the Act grants extraordinary discretionary power to the Minister of Defense to order the detention of an individual suspect for investigation or as a “preventative measure.” The Minister may decide the place of detention, the conditions of detention, and whether to impose continued restrictions or prohibitions on a person’s freedom of expression, freedom of association, and freedom of movement—even after the person is released from custody.
Sri Lankan legislators continued to extend the state of emergency on a monthly basis from the end of the war in 2009 until August 2011, when the government declared that it had not experienced a single act of terrorism since the war’s end. Troublingly, however, the Prevention of Terrorism Actremains in effect despite renewed calls for its repeal by domestic and international human rights organizations. While the government may be able to claim that it has not been a victim of a terrorist act since 2009, the same certainly cannot be said of the former and suspected Tigers that reside in Sri Lanka.
Recall the elements of Resolution 1566 set out above. Terrorist acts are (1) “criminal acts, including against civilians” committed (2) “with the intent to cause death or serious bodily injury” (3) “with the purpose to provoke a state of terror…in a group of persons or particular persons,” or to (4) “intimidate a population…to do or to abstain from doing any act.”
Under its emergency and counterterrorism legal regimes, the Sri Lankan government has engaged in routine criminal denials of due process rights, through both the letter of the law and the discretionary practices the law affords. Moreover, it has done so against thousands of civilian members of Sri Lanka’s Tamil minority. The intent to cause serious bodily injury or death can be inferred from the massive number of detainees who have been tortured or summarily executed without trial. This kind of continued behavior over more than four decades coupled with a military presence aimed at discouraging the Tamil minority from any form of organization strongly indicates a purpose of provoking terror in the Tamil minority. At the very least, the Sri Lankan government intends to use fear to intimidate the Tamil minority from engaging in the act of organization.
Accordingly, because the Sri Lankan government engages in the acts described above under the authorization of its Prevention of Terrorism Act, and because the government retains full discretion over how the Act is applied, I submit that Sri Lanka’s domestic counterterrorism legislation authorizes the state to engage in terrorist acts prohibited by SC Resolution 1566.
To what extent, if any, can the language of a state’s counterterrorism legislation be used to authorize the state to engage in acts that, if perpetrated by a non-state actor, would be considered terrorist acts under international standards? I submit that, at least in the states described above, counterterrorism legislation is used to justify such acts even as it is used to prevent them. The U.S. has imposed terror through the use of drones, Ethiopia through the use of the label of “terrorism”, and Sri Lanka through the authorized suspension of (in some cases) virtually all universally accepted due process rights. Moreover, the demonstrations above illustrate that a large part of what constitutes “terrorism” is not an act in and of itself, but rather, a label upon a cause. With both public (e.g.) and private (e.g.) international stakeholders pressuring states to adopt new or expand existing counterterrorism laws, it is necessary to move forward with extreme caution and a watchful eye toward the label of “terrorist.”